Misconduct at Justice Department isn’t always prosecuted

Dozens of Justice Department officials, ranging from FBI special agents and prison wardens to high-level federal prosecutors, have escaped prosecution or firing in recent years despite findings of misconduct by the department’s own internal watchdog.

Most of the names of the investigated officials, even the highest-ranking, remain under wraps. But documents McClatchy obtained under the Freedom of Information Act reveal for the first time a startling array of alleged transgressions uncovered by the department’s inspector general.

These include:

– Investigators concluded an assistant U.S. attorney “lacked candor” when interviewed by FBI agents investigating her husband’s “embezzlement activity.” The prosecutor also “made misleading and contradictory” statements to other investigators who were asking about her husband’s criminal activities. She was “verbally admonished” this year, but the Justice Department opted not to prosecute.

– A U.S. attorney violated federal laws and regulations by accepting a partially paid trip to a foreign country by a nonprofit organization, according to investigators. The unnamed presidential appointee was given a written admonishment and he was ordered to reimburse the organization. Prosecution was declined.

– Two FBI supervisory special agents accepted free tickets to the NBA All-Star Game and gave them to family members. One agent “lied under oath” about his actions, and was found to have misused government resources to “engage in extramarital affairs with three women.” That agent resigned after the bureau proposed his dismissal and the other was suspended for three days. Neither was prosecuted.

– An FBI assistant special agent in charge sexually harassed female subordinates, retaliated against a female special agent who refused to have a relationship with him and used his FBI-issued BlackBerry to pursue romantic relationships with 17 FBI employees, nine of whom were direct subordinates, as well as 29 other women. In January, the FBI told the inspector general it had issued an undisclosed disciplinary action. No charges were brought. In a statement to McClatchy, the FBI said it couldn’t comment on an “ongoing personnel matter.”

The records, which cover the period from January 2010 to March 2014, detail some 80 cases, only a few of which appear to have been previously made public. The accused officials work for agencies that include the Drug Enforcement Administration, the U.S. Marshals Service and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In at least 27 cases, the inspector general identified evidence of possible criminal wrongdoing but no one was prosecuted.

These previously undisclosed cases, and dozens of others like them reviewed by McClatchy, reveal more than an underside to federal law enforcement. The cases underscore how much discretion federal prosecutors have in deciding whether to press charges, and they raise questions about when and why this discretion is applied.

“I think it’s fair to ask why some of these cases weren’t prosecuted,” Justice Department Inspector General Michael E. Horowitz said in an interview. “That’s clearly a concern we have: To make sure there are not two standards of justice at the Department of Justice.”

However, he said it’s understandable in many cases that criminal charges aren’t filed. His office presents a case for prosecution in every instance where there’s “credible evidence that could support elements of a crime, even when it’s weak.”

“Some of them are just legitimately difficult cases,” he said.

The reports come, however, amid an overall decline in public corruption prosecutions during the Obama administration. So far this year, records obtained by the nonpartisan Transactional Records Access Clearinghouse at Syracuse University show that 34 percent of investigators’ referrals of public corruption allegations were accepted for prosecution.

During the George W. Bush presidency, records show, 41.6 percent of the official corruption referrals resulted in prosecution.

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Gauging the reasons behind an individual prosecutor’s decision-making is nearly impossible, because the Justice Department and inspector general’s office won’t release most of the names or discuss the details of the cases.

Justice Department records show that federal prosecutors nationwide declined a total of 25,629 criminal matters during fiscal year 2013. The reasons most commonly reported included weak or insufficient evidence and lack of criminal intent.

Peter Carr, a Justice Department spokesman, said prosecutors followed federal rules when deciding whether to initiate or decline charges in a case.

Carr pointed to the U.S Attorney’s Manual, which says, “Federal law enforcement resources and federal judicial resources are not sufficient to permit prosecution of every alleged offense over which federal jurisdiction exists.”

“Public corruption cases are very fact-specific, and statistics fluctuate routinely year by year,” Carr said Tuesday. “The decision to bring a case involves a number of factors, all covered by the Principles of Federal Prosecution, which may include the seriousness of the allegation, the admissible evidence and whether there is a substantial federal interest in pursuing charges.”

The inspector general’s summary of unprosecuted cases was provided to Republican Sens. Charles Grassley of Iowa and Tom Coburn of Oklahoma, and independently obtained by McClatchy through a FOIA request.

Grassley said he agreed that not all cases warranted prosecution. However, he called for more transparency in the decisions “because of the obvious appearance of a conflict of interest.”

“The public needs to be reassured that the department doesn’t have one standard for its own employees and another standard for everybody else,” he said.

Other cases federal prosecutors declined that were cited in the documents obtained by McClatchy include:

– Allegations against an unnamed prosecutor who was recused from involvement with a criminal investigation because of a personal relationship with a criminal target. The inspector general, however, concluded the prosecutor had disclosed information about the investigation and the wiretap to her spouse, “who subsequently disclosed it to the target.” The prosecutor initially denied revealing the information to her spouse, but subsequently acknowledged that she might have “said something” about the investigation. The prosecutor retired last November.

The husband of former Assistant U.S. Attorney Paula Burnett in New Mexico was convicted last September of leaking details of an investigation to Mexican drug cartel members. Burnett retired late last year, according to news accounts. The inspector general and the U.S. attorney’s office in New Mexico wouldn’t confirm whether it was the same case. Burnett declined to comment.

– The inspector general’s review found $211,000 in questionable purchases at a district U.S. marshals’ office, including “ceremonial and promotional” items previously banned by headquarters, personal or other wasteful items. The investigators concluded that the marshal and the chief deputy marshal had misspent funds, knowingly misused the government purchase card program and violated public service laws. Disciplinary action was still pending this year.

– Investigators concluded that an immigration judge had solicited attorneys to purchase jewelry from her, borrowed money from a lawyer and interpreter, and failed to recuse herself from cases that involved lawyers representing her relatives in criminal matters. The Executive Office for Immigration Review, which oversees immigration judges, “proposed disciplinary action” in January. Spokeswoman Kathryn Mattingly said her office “does not comment on personnel matters.”

Several cases also involve prosecutors misusing their positions, including one who’d sent emails on behalf of her boyfriend, disclosed sensitive information to him without authorization, used government databases to conduct legal research for him, gave him access to government computer accounts and sent a gift to an attorney to get her boyfriend legal assistance. In December 2011, she received a letter of suspension for 14 days.

In the interview, Horowitz wouldn’t comment on specific cases but he added that he’s personally appealed to U.S. attorneys to consider prosecution in some instances.

“I pick up the phone and call them,” said Horowitz, a former longtime federal prosecutor who handled corruption cases in New York.

Horowitz’s role is not to make the prosecution decisions, but to ensure that prosecutors get the information they need .

“There are some where I might have pulled the trigger. But I’m not a prosecutor anymore so I respect the discretion not to. I can’t think of any case where a decision was made not to prosecute that I thought was unreasonable,” he said.

Some of the misconduct cases may not be pursued because they involve “low-dollar” waste or abuse, Horowitz said. Or cases may be seen as too tough to prosecute, sometimes for the wrong reasons, he added, such as the sexual abuse of prisoners. Prosecutors can view prisoners as unsympathetic witnesses.

Before Horowitz took over in 2012, the inspector general’s office disagreed with a federal prosecutor who didn’t want to file charges. In that case, a correctional officer had accepted $1,300 from an undercover agent in exchange for agreeing to smuggle tobacco into a correctional facility. After prosecutors from the federal district based in Houston declined to pursue criminal charges, a local district attorney took the case. The officer later pleaded guilty to bribery, was sentenced to probation and was fined $2,000.

Earl Devaney, a former inspector general for the Department of Interior, said a decision not to pursue criminal charges didn’t necessarily mean investigators or prosecutors were pulling their punches.

“There are always a lot of good reasons to not prosecute,” he said. “Also, you can have a thousand little crappy cases that just make you look good and just one case that has enormous impact.”

Devaney nonetheless added that he’d found the Justice Department’s public integrity unit, which is set up to prosecute cases of high-level corruption, to be “risk adverse” in the past. He worked with it as part of a federal task force that investigated superlobbyist Jack Abramoff and his influence peddling.

Sometimes, alleged misconduct by prosecutors and investigators might be handled less aggressively because of concern that it would taint criminal cases, Devaney said. At trial, defense attorneys are permitted to learn of serious misconduct of the agents and prosecutors involved in their cases.

According to the most recent report by the office, the Justice Department’s inspector general received nearly 5,900 allegations of misconduct, opened 195 investigations and was involved in 32 arrests and 38 convictions from October through March.

This year, for instance, a former federal correctional officer in Missouri was sentenced for trying to hire an inmate to murder his wife’s ex-husband.

However, the Justice Department’s inspector general doesn’t break down details on prosecutions. As a result, McClatchy couldn’t determine the prosecution rate for the office’s cases.

At least one other inspector general does report such statistics. The Interior Department Inspector General’s Office opened 742 cases in the year that ended March 31. During the same period, the office reported referring 44 cases for possible prosecution. Nineteen cases were declined.

During the same year, the Department of Homeland Security opened 551 investigations, referred 322 for prosecution and had 196 declined.

Horowitz is one of some 72 federal inspectors general, spanning myriad federal agencies. They are auditors, in part, scrutinizing government agencies in hopes of rooting out waste and inefficiencies. In fiscal 2013, for instance, the inspectors general identified $44.9 billion in funds that could be “put to better use.”

Inspectors general also investigate criminal allegations. In fiscal 2013, their work led to 6,705 successful criminal prosecutions.

The agencies make the calls on disciplinary action.

In the Justice Department cases, Devaney said he was struck by instances of weak punishment.

“An oral admonishment is not a deterrent,” Devaney said.

One case was triggered by a complaint by Grassley about FBI Assistant Director Stephen Kelly. Kelly, who managed the bureau’s Office of Congressional Affairs, told Grassley’s staff that the FBI knew that the senator planned to attend the wedding of a “subject” of an FBI investigation, according to the inspector general’s report.

“He assured Senator Grassley that he was not a focus of the FBI investigation,” the documents say.

“The OIG concluded that Kelly did not have the authority to disclose nonpublic information about an ongoing criminal investigation to Senator Grassley or his staff, and in doing so exhibited poor judgment,” the report states.

Grassley’s office said the senator never planned to attend the wedding and was invited by the son of the target of the investigation. The target was Russell Wasendorf Sr., founder of Peregrine Financial Group Inc., who pleaded guilty to embezzling more than $100 million from customers.

“Senator Grassley and the staff member who spoke with Mr. Kelly both thought the disclosure was inappropriate, and could have been intimidating to somebody who hasn’t dealt with the FBI like Senator Grassley and his staff have,” said Grassley spokeswoman Beth Levine.

This year, the FBI concluded that the allegation Kelly had violated internal policy was “unsubstantiated” and gave him “nondisciplinary counseling.”

“FBI concluded that Kelly’s disclosure of nonpublic information derived from an ongoing investigation was improper, for which he received nondisciplinary counseling,” the bureau said in a statement. “The FBI’s Office of Congressional Affairs must be afforded some measure of latitude and flexibility in dealing with members of Congress. As this instance did not result in harm to the ongoing investigation, and was done with good intentions, the matter did not constitute official misconduct.”